Craig's Court: Compensation For What?

Posted July 29, 2004

1:08 AM, Jul 31, 2004

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Craig Silverman

Here are some of the bottom lines on these redacted transcript revelations about victim's compensation money for this alleged victim of Kobe Bryant -- $17,000 is an extraordinary amount of money to pay for mental health counseling. Of course, this is an extraordinary case.

What exactly was the mental health counseling? Did it include drug and alcohol rehabilitation? If so, wouldn't it be necessary for the Crime Victim's Compensation Board to draw a connection between a victim's drug and alcohol problem and the alleged crime? What if there was evidence that the victim had a pre-existing condition which involved overdoses well before she had any encounter with the alleged perpetrator?

I sought the answers to these questions this past winter when this issue first appeared to be a subject in this case. I spoke to the heads of two metro Denver crime victim compensation boards. They indicated that their Crime Victim Compensation Boards never had authorized drug and/or alcohol treatment for a victim of sexual assault because the nexus of rape to substance abuse could never be properly established. I did not even bring up to them the possibility of a pre-existing condition.

So who makes up the Crime Victim Compensation Board in a judicial district? Interestingly enough, there are three members, all of whom are appointed by the District Attorney in the judicial district. The law reads as follows:

(1) There is hereby created in each judicial district a crime victim compensation board. Each board shall be composed of three members to be appointed by the district attorney. The district attorney shall designate one of the members as chairman. To the extent possible, members shall fairly reflect the population of the judicial district.

According to the redacted transcript, the accuser of Kobe Bryant has apparently received over $2,200 in lost earning compensation. Fifth Judicial District DA Mark Hulbert, when this issue first arose in this litigation, wrote on March 16, 2004 that:

The only compensation provided to the victim and/or family by a government agency is through the Crime Victim's Compensation fund as reimbursement for psychological counseling. The first the People have heard of any request for Crime Victim's Compensation records was in their (the defense) motions filed March 15, 2004.

Lots of insinuations of misconduct on the part of Pamela Mackey were printed in this morning's papers. How dare Pamela Mackey accuse the alleged victim of having a financial incentive? This is in the same case where, as in other prior high-profile cases, witnesses have been considered not worthy of belief if they took a few hundred dollars from any tabloid reporter.

The feisty Ms. Mackey even accused the alleged victim of making a false accusation which has not been retracted in part because of the resulting possible need to pay back the victim's compensation money.

A tabloid theme rang through the accuser's attorney, John Clune's, accusatory statements against Mackey in today's Vail Daily article authored by Randy Wyrick:

The attorney for the alleged victim in the Kobe Bryant rape case was livid over defense team accusations that she concocted her story to get money from a victims compensation fund, calling them "tabloid accusations."

In sanitized transcripts of a June 21 hearing released Thursday, Bryant's defense attorney Pamela Mackey said the alleged victim "has profited to an enormous amount -- $20,000."

The alleged victim's attorney, John Clune, was furious with Mackey's assertion Thursday.

"The suggestion by Ms. Mackey that this family has profited from this case is disgusting," said Clune.

The alleged victim received medical treatment following the June 30, 2003, incident with Bryant in his suite at the Lodge and Spa at Cordillera. Part of those expenses were covered by the Crime Victims' Compensation Fund, which helps people offset medical expenses related to a crime that aren't covered by insurance.

Mackey argued that the jury should hear how much money changed hands in the alleged victim's treatment. She also said if the alleged victim is lying -- and Mackey asserted in court that she is -- that money would have to be repaid.

Clune took offense.

"Her argument is nothing but tabloid accusations filled with misinformation," he said.

He said the fund won't come close to covering his client's family's "huge" expenses connected with the case.

"Although the family greatly appreciates statewide programs like the Crime Victims Compensation Fund, the amounts paid in this case are a mere fraction of the financial burden they have incurred as a result of simply reporting a crime," said Clune.

"I wonder how these expenses stack up to one week of billing from Bryant's defense team."

Other analysts pointed out that the state cap for mental health counseling is $20,000 and claimed Pamela Mackey's assertion of a $1,125 limit made no sense. To the contrary, local boards make up their own limits and section 11.14 of the 5th Judicial District Crime Victim Compensation Program Policy and Procedures states as follows:

The CVC Board will pay a maximum of $75 for mental health therapy. The total amount paid for mental health treatment has been set by the CVC Board at $1,125.00. If additional therapy beyond the $1,125 limit is required, a treatment review form must be completed by the therapist and submitted to the CVC Board for approval.

Pre-existing conditions preclude compensation. Mental health treatment programs are supposed to have some connection to Colorado. Lots of rules exist and the question arises whether this alleged victim's compensation complied with all of them. Some suggest it does not matter. Team Kobe apparently feels that it does. Judge Ruckriegle apparently found the defense showing sufficient to allow the jury to consider the issue. As with everything else, it will be up to the jury to determine what is important and what is not.

The Colorado Supreme Court has ruled that Colorado's Rape Shield law trumps the prohibition against prior restraint censorship. There was no mention of Colorado's Victim Compensation law having similar trumping power. Yet the Court has redacted most of the discussion of where the $17,000 in mental health counseling money went. Seven media organizations know the answer. It may only be a matter of time before the rest of us know.

Craig Silverman is a legal analyst for 7NEWS. He will be contributing his thoughts on the Kobe Bryant case in the months to come. He works for the downtown Denver law firm of Silverman and Olivas, P.C., which you can contact through their Web site or by calling (303) 595-0529. You can read Craig's bio here.